Appendix 1 – Comments of the Bureau of the
European Committee on Legal Co-operation (CDCJ) on Parliamentary
Assembly Recommendation
1808 (2007) adopted at its 80th meeting (13-14 December 2007)
1. Following the
adoption by the Parliamentary Assembly of
Recommendation 1808 (2007) “Assessment of transit and processing centres as a response
to mixed flows of migrants and asylum seekers”, the Committee of
Ministers decided to communicate it to the European Committee on
Legal Co‑operation (CDCJ), for information and possible comments
by 31 December 2007.
2. The Bureau of the CDCJ took note of the recommendation of
the Parliamentary Assembly and decided to comment on domains which
are of particular interest to the CDCJ.
3. The Bureau of the CDCJ underlines the need to ensure that
every migrant or asylum seeker has an effective access to justice
and refers in this regard to
Resolution
No. 1 on “Access to justice for migrants and asylum seekers”,
Note in
which the European Ministers of Justice agreed “on the importance
of securing the fundamental rights of, and facilitating their exercise
by, migrants and asylum seekers, through access to information,
to an effective remedy, to a fair trial and, where appropriate,
to representation, interpretation and assistance”.
4. The Committee of Ministers was, in this respect, invited by
the Ministers of Justice to entrust the CDCJ, in co-operation with
the European Committee on Crime Problems (CDPC) and the Steering
Committee for Human Rights (CDDH), to examine “access to justice
for migrants and asylum seekers by identifying means and measures
with a view to facilitating and ensuring this access, including
the provision of legal aid and assistance”.
5. The Bureau of the CDCJ shares the concerns of the Parliamentary
Assembly regarding the practical and legal implications for the
viability and nature of transit and processing centres (paragraph
2 of the recommendation).
6. The report prepared by the Committee on Migration, Refugees
and Population (Document 11304) sets out in its explanatory memorandum
(paragraph 38) that the determination of jurisdictional responsibility
for processing centres should be in conformity with the European
Convention of Human Rights and its related jurisprudence.
7. The Bureau of the CDCJ furthermore notes that the case law
of the European Court of Human Rights accords migrants and asylum
seekers substantial guarantees (prohibition of torture, right to
respect for private and family life, prohibition of collective expulsion
of aliens) and procedural safeguards (inter
alia developed on the basis of the right to an effective
remedy).
8. The Bureau of the CDCJ recalls the “Twenty guidelines on forced
return” adopted on 4 May 2005 by the Committee of Ministers further
to their drafting by the Ad hoc Committee of Experts on Legal Aspects
of Territorial Asylum, Refugees and Stateless Persons (CAHAR) and
which concern procedures leading to the expulsion of non-nationals
whose presence on the territory of a member state is illegal. Guideline
10 is more specifically dealing with conditions of detention pending
removal and should be taken into consideration with a view to ensure
that migrants enjoy the rights they are entitled to.
9. In the framework of the Memorandum of Understanding between
the Council of Europe and the European Union, the Bureau of the
CDCJ furthermore calls for full consideration of the Council of
Europe standards in the current exercise of preparation of a “Common
European Asylum System” by the European Union.
10. Considering the transversal nature of issues related to migration
and asylum, currently dealt with by various Steering Committees
in the Council of Europe, the Bureau of the CDCJ calls for a comprehensive
and co-ordinated approach in this field, in order to ensure that
the rights of this vulnerable group of persons be adequately considered.
